C-281/85

1. On 8 July 1985 the Commission of the European Communities adopted the 2. The contested decision is based on decision setting up a prior communication Article 118 of the EEC Treaty which, in the and consultation procedure on migration Commission's view, empowers it 'to policies in relation to non-member countries promote cooperation between Member (C(85) 1089), notifying it to the Permanent States in the field of social policy . . . and to Representatives of the Member States three organize appropriate consultations to this days later. An amended version of that end' (seventh recital in the preamble). From decision (C(85) 1089 Rev.) was forwarded the point of view of its content, the decision to the French Permanent Representative on can be broken down into three groups of 18 July 1985 and it was published in its rules, all addressed to the Member States: definitive version as Decision 85/381 in the Article 1, which subjects them to a series of Official Journal of the European Communities duties to provide information; Article 3, of 14 August 1985 (Official Journal, L 217, which sets out the objectives of the consul- p. 25). tation procedure in which the respective governments are required to participate; and Articles 2 and 4, which lay down the relevant procedural rules. By applications received at the Court between 17 and 23 September 1985 the Federal Republic of Germany (Case 281/85), the French Republic (Case The information which the Member States 283/85), the Kingdom of the Netherlands must provide relates to their migration (Case 284/85), the Kingdom of Denmark policies and hence covers the measures and (Case 285/85) and the United Kingdom of agreements by which they have pursued Great Britain and Northern Ireland (Case (Article 1 (2)) and intend to pursue those 287/85) requested the Court to declare that policies. The Commission is, however, decision void. It should also be pointed out interested above all in measures in prepa- that by three orders of 19 February 1986 the ration. Indeed, Article 1 (1) requires the Court authorized the Netherlands to Member States to notify, in good time and intervene in support of the Federal Republic at the latest at the moment they are made of Germany, the United Kingdom to public: (a) draft measures with regard intervene in support of the French Republic both to workers who are nationals of and the European Parliament to intervene in non-member countries and to members of support of the Commission. Furthermore, their families relating to entry, residence by order of 9 July 1986 the Court (a) reserved for the final judgment its decision and employment, including illegal entry, on the issue of admissibility raised by the residence and employment, equality of Commission in Case 284/85 and (b) joined treatment in living and working conditions, wages and economic rights, integration into

Under Article 4 consultation is to be The aims of the cooperation are of three arranged by the Commission, which is to types. In the first place, the cooperation is chair meetings and provide the secretariat. designed to facilitate the mutual exchange However, the responsibilities of existing of information and the identification of bodies, and in particular those of the problems of common interest and, in advisory and technical committees on the relation to those problems, to facilitate the free movement of workers as determined by adoption of a common position, particularly Regulation No 1612/68 of the Council of as regards international instruments relating 15 October 1968 (Official Journal, English to migration. The second aim is to ensure Special Edition 1968 (II), p. 475), are unaf- that the draft agreements and measures fected thereby. Article 4 also provides that referred to in Article 1 are in conformity the Member States are to take all necessary with, and do not compromise the results of, steps to ensure the proper functioning of Community policies and actions, including the consultation procedure and, where development aid, in particular as regards necessary, to safeguard the confidential Community labour-market policy. The third nature of the information made available to objective is to examine the possibility of them in that connection. Community or national measures aimed at harmonizing national legislation on foreigners, promoting the inclusion of a maximum of common provisions in bilateral agreements and improving the protection of 3. The centrepiece of the dispute is the Community nationals living or working in interpretation of a primary rule: Article 118 third countries. of the EEC Treaty. Unlike the Commission, the applicant Member States maintain that that article confers no power on it in the area of migration policies with regard to As I have already mentioned, Articles 2 and non-member countries and, above all, that it 4 govern the procedural aspects of the does not justify the issue of binding acts. It cooperation. Article 2 (1) provides that if, will therefore be appropriate to commence within two weeks from the notification of our inquiry by considering that provision information on draft agreements and/or and in particular the criteria which have national measures, a Member State so governed its application, the measures which requests or if the Commission so decides on have been based thereon and the practice

A no less suspicious and uncompromising attitude emerged with regard to studies. The second paragraph indicates the Indeed, at meetings held on 24 May and 21 instruments which the Commission is to use and 22 October 1963 the representatives of in achieving those aims. 'To this end', it the Member States adopted a veritable code reads, 'the Commission shall act in close of conduct which the Commission was contact with Member States by making intended to observe. More specifically, it studies, delivering opinions and arranging was agreed that (a) before drawing up consultations both on problems arising at studies of new social questions the national level and on those of concern to Commission would have to submit its plan international organizations'. The third to the Council or to the governments and paragraph lays down an important condition might proceed therewith only after it had in the shape of an essential procedural obtained the unanimous approval of the requirement, providing that 'before governments; (b) without the prior delivering the opinions provided for in this agreement of the governments it was not article, the Commission shall consult the entitled to draw conclusions from studies to Economic and Social Committee'. serve as a basis for pursuing specific policies; (c) it might not utilize the findings reached by the 1962 conference on social security except with the participation of the Having said that, it must be stated straight governments and independent experts; and away that there has never been unanimity (d) the governments alone were authorized on the principles on the basis of which to decide on the involvement of the social Article 118 must be applied — or, more partners, which was to be done on a case- practically, on the ways in which the by-case basis.

Admittedly, more open statements were not lacking. In particular a memorandum on social policy drawn up by the Italian Those statements gave rise to a very lively Government (1964) roundly criticized the debate between the Council and the 'restrictive interpretation' of Article 118 Parliament. On 19 December 1966 the which had held sway until then. It stated Council, addressing the subject of studies, that that construction of Article 118 had led curtly confirmed the argument which the to a blind alley by, on the one hand, Member States had put forward three years reducing Community action to a few acts of before. The Parliament's response was scanty or no effectiveness and, on the other, vigorous. In a resolution of 1 February 1967 by requiring the most important decisions to it protested 'against tendencies... [to be taken by the paralysing procedure of prefer] ... ad hoc bilateral or multilateral conferences between government represen- procedures rather than . . . Community tatives. Yet there was nothing to prevent the measures complying with the 'normal system' of Community instruments Treaties . . . whose political and legal bases from being used to attain the objectives of are to be found in the Article 118 ; neither could it be objected that commitments . . . subscribed by the Member under Article 118 the Commission had the States'. But the Council took no notice. task solely of promoting close cooperation Two Council programmes dated 29 between Member States, since the article February 1968 (Annex II to Doc. 1413 f 68 also provided that that task must be carried (Doc. 84) of 26 September 1968) and 27 out 'without prejudice to the other July 1971 (Official Journal, C 23 of 8 provisions of [the EEC] . . . Treaty' (the text March 1972, p. 20) again tackled the subject of the memorandum is annexed to the of studies and gave the Commission a role Nederhorst report, cited above, page 20). which, in certain respects, was even more limited and subordinate. In fact, it was given the right to participate in the choice of subject-matter for investigation; at the same An even more rigorous approach was time, however, the power to direct the adopted by the European Parliament. In its execution of the research independently was

Let us turn to the consultations. These have been frequent and diverse: some requested by the governments and held in the form of 4. Hence there was dissension, but above all ad hoc meetings between their 'social coldness, distrust and vigorous defence of advisers' and Community officials; others, national sovereignty, even in the face of termed 'European Conferences', have been exhortatory or fact-finding instruments. Yet held with the involvement of representatives still, analysis of the measures which have of the Member States, representatives of been based on Article 118 shows that, at social groups and experts and have been least since the late 1960s, the Commission devoted to the discussion of a number of has not allowed itself to be completely major problems (social consequences of closed into the cubbyhole earmarked for it technical progress in 1960, social security in by the Council and the Member States. 1962); others still, described variously as Research, even high-quality research, has seminars, colloquia, study days, and round been carried out, and although, to my tables, have been devoted to less important knowledge, no opinions have been issued subjects (social housing in 1963, industrial some 10, if not more, recommendations medicine and social training in 1964). have come out of the Berlaymont building. I Mention must also be made of the written grant that Article 118 does not mention opinions which the Commission asks the recommendations, but it is clear from committees provided for in the Treaty and Article 155 that the Commission has the the bipartite and tripartite groups set up by power to issue them from the expressions secondary legislation to issue. It is in this used therein ('on matters dealt with in [the setting that the chapters of the annual EEC] . . . Treaty . . . if the Commission report on the social situation in the considers it necessary'), whose scope could Community which Article 122 of the EEC not be broader. However, it must be borne Treaty requires the Commission to submit in mind — and the importance of this to the Parliament are drawn up. remark will emerge later — that the recom- mendations which I have mentioned were invariably referred to the Economic and Social Committee for its opinion. In the final analysis, this represents a considerable amount of activity. But, it must be admitted, in this context it is organized by the Commission in circumstances of Surprisingly, the decision at issue is not the definite subordinacy. According to some first of its kind that the Commission has academic lawyers, it falls to the Member adopted on the basis of Article 118. The States to determine whether, how and when Joint Committees on Social Problems in consultations are to take place and that the Sea-fishing and on Social Problems of Agri- Commission may not lay down the subject- cultural Workers were set up on 25 July matter of the discussions or the rules of 1974 by Decisions 74/441 and 74/442; nor procedure (see Knolle, Article 118, in AA. can it be said, as we shall see more clearly W., EWG-Vertrag Kommentar, 2nd in Section 7, that the Member States and Edition, Baden-Baden, 1974, p. 1515). And

practice seems to bear out this — albeit here is the nub — included an 'action dubious—view. Indeed, it has been very programme' designed (a) to achieve equality rare for the Commission to call meetings or of treatment for Community and request opinions without first securing the non-Community workers 'in respect of agreement of the Council. One can mention living and working conditions, wages and simply by way of example the written economic rights', and (b) to 'promote consultations on the implementation of consultation on immigration policies Article 118 (Ribas, 'La politique sociale des vis-à-vis third countries'. Communautées européennes', Paris, 1969, p. 47) and the round table on social policy in the transport sector, where the Council chose the subjects to be placed on the agenda and the national delegations laid Three episodes of some importance down the detailed role of the government followed, involving the same institutions. officials attending the proceedings (Eighth Again in 1974 the Summit Conference of Review of the Council's Work, April- Heads of State or Government (Paris, 9 and September 1963, p. 40). 10 December) emphasized in Point 10 of the final communiqué the need for stage- by-stage harmonization of legislation affecting aliens. Two years later, a new Council resolution (9 February 1976, Official Journal, C 34, p. 2) took up once 5. The time has come to consider the facts again the subject-matter of the document of this dispute, which entails retracing the which I have just quoted, added a reference many stages in the process which has to the need jointly to combat illegal immi- culminated in Decision 85/381 and the gration of non-Community workers and applications on which the Court is called to ended by expressing the 'political resolve' to give a decision. implement the promised measures while taking account of the responsibilities of the Community institutions concerned. Lastly, on 11 December 1978 the General Committee for Euro-Arab Dialogue meeting To my knowledge, the most distant in Damascus adopted a 'Declaration on the antecedents of the present proceedings go principles governing the living and working back to 1974 or even to 1972. Indeed, in conditions of migrant workers from the two October 1972 the Heads of State or regions'. It, too, guaranteed equal treatment Government meeting in Paris called on the in respect of economic rights and basic institutions to relaunch Community activity human rights (Twenty-sixth Review of the in the social field by providing for the Council's Work, 1 January-31 December necessary measures and resources. Fifteen 1978, pp. 56 and 57). months later, on 21 January 1974, the Council accepted that invitation by adopting a resolution (Official Journal 1974, C 13, p. 1) in which 'full and better employment at Community, national and regional levels' At this point, the Commission enters on the was stated to be an 'essential condition for scene; hitherto it appeared to have been an effective social policy' and an under- interested in migration policies in a fairly taking was given that the measures marginal manner. The communication necessary to achieve that objective would be which it forwarded to the Council on adopted by 1976. Those measures — and 23 March 1979 (COM(79) 115 final)

accurately traces the relevant socio- arrangements for vacancy clearance, and the economic background and pays attention to foreseeable developments in the state of the both strategic objectives and procedural labour market, including the likelihood of details and constitutes one of the most Community workers accepting the available important milestones in this affair. It must vacancies. Also, there was nothing to therefore be examined carefully. prevent ad hoc groups being set up with the participation of the social partners in order to deal with specific questions. The document begins with an acknowl- edgment which is also an act of prudence: to 'decide on the principles of consultation between the Member States and the 6. As can readily be imagined the document Commission' is a matter for the Council summarized above brought a breath of fresh

(paragraph 3.2). The admission of Permanent Representatives for the Council foreigners, which is haphazard and meeting of Labour and Social Affairs ill-planned and often implemented illegally, Ministers (Doc. SOC 266 of 15. 11. 1979) seriously risks jeopardizing that policy. A recognized the existence of a link between series of measures should therefore be migration policies and the priority to be studied jointly with a view to adopting a given to workers who are nationals of coherent approach to the immigration of Member States, and proposed that that issue workers from non-member countries by should form the subject of consultation.

For instance, problem is how to guarantee them priority France stated that the Advisory Committee over non-Community labour in access to the set up under Regulation No 1612/68 was available vacancies; this is the first subject- not an appropriate forum for discussing matter for consultation, which should be matters involving national sovereignty; as a arranged forthwith (paragraph 4.1). result the Technical Committee was preferable but even so it should not involve itself in outlining Community negotiating positions. In any case, France and Germany As for the procedure to be applied to the warned, general terms of reference should meetings in which these topics were to be not be given to the Commission; and the tackled, no new machinery appeared to be Danish delegatioi idded that consultation necessary. It was deemed sufficient to rely should not lead tc nding instrum "« on Article 19 of Council Regulation No 1612/68, which was sufficiently flexible to cope with the sector of migration policies. Accordingly, the Commission was to report The Commission responded to those caveats on the results of the Community by stating that it viewed consultation as a

method of enabling it to make proposals, market by labour from third countries, and not to adopt measures. But the most precise by appropriate consultation on migration — and perhaps the most accurate policies vis-à-vis third countries'. The style — form of words with regard to this matter is laboured but the political emphasis of the was delivered by the Council in the message is clear. There is also a clear invi- conclusions to the Council meeting referred tation to act, which, once again, is to above (Doc. PV/CONS 53 SOC 292 of addressed to the Commission.

Point 7). It considered that the time was experiences in the 1960s and the unsatis- right for such an initiative and requested factory outcome of its previous attempts to the Commission 'to prepare or organize pursue voluntary collaboration (infra, [appropriate consultations], as the case may section 15) that genuinely effective action be'. would again meet with insurmountable resistance; one might as well therefore continue to work at the matter by issuing severe diagnoses of the existing situation and making increasingly explicit proposals. It seems to me that the document of 9 September 1983, addressed to the Advisory Committee, was designed with that strategy Six months later the Commission document in mind. It contains a pointed allusion to the bore new fruit: the Council resolution of 27 agreements concluded by the Community June 1980 on guidelines for a Community with Turkey, Portugal, Yugoslavia and labour-market policy (Official Journal 1980, Maghreb countries which secure for immi- C 168, p. 1), which put the procedural grants from those countries a less advant- questions on one side and once again put ageous status than is guaranteed the emphasis on the substantive problems of Community nationals.

The time has now come 'to institu- to contain access to the Community labour tionalize such consultation'.

However, in what way can this be achieved? jurisdiction of the governments 'of the The answer — and it is a crucial one — is to Member States', it recognized that it was be found in the draft communication on desirable to promote cooperation and guidelines for a Community policy on consultation and noted 'the Commission's migration, which goes back to 13 March intention of drawing up an appropriate 1984 and was also sent to the committee set procedure to this end' (paragraph 3), calling up by Article 24 of Regulation No 1612/68 on the Commission 'to submit the necessary

But by that time to achieve simply the adoption of common the horse had already bolted, for on 8 July positions and merely requires information the Commission had issued the contested and discussions on each and every one's measure. problems in the sphere of measures relating to workers from non-member countries and members of their families. But the draft communication goes on to state that if the 7. Now that I have concluded the account information and discussions are to be of the facts which led to the adoption of the mandatory in nature it is essential to have a contested decision, it seems to me that a decision to put them into effect (Point 55). question is called for.

thrown. In a document dated 22 June 1984 and, when the Commission decided to act, (Conclusions of the Council concerning a asked it on a further two occasions to Community medium-term social action inform the Council of its proposals. For programme, Official Journal 1984, C 175, p. their part, the Member States raised doubts, 1), the Council 'takes note' that the put forward suspicions, gave warnings; but Commission is to submit proposals for they never said — either before 1985 or, 'developing cooperation between Member even less, during the procedure — that they States on the control of migratory flows were unwilling to provide each other with from third countries'. Then when the information and take part in consultations. Commission presented it with a draft resolution stating the need to define 'a suitable framework' for consultation (Doc. COM(85) 48 final of 7 March 1985) the It may perhaps be objected that the Member Council's response was couched in anodyne States are not criticizing the thing itself but but not in negative terms. Thus once it had the instrument and the materials — clarified that 'matters relating to the access, a decision and the constraints resulting residence and employment of migrant therefrom — with which the thing has been workers from third countries fall under the made. This argument, too, is untenable.

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sufficient in order to refute it to point out Community research, development and that the two 1974 decisions (supra, Section demonstration activities, Official Journal 4) were also based on Anicie 118 and yet 1984, L 177, p. 25; Council Decision of 28 not contested. On the other hand, if it is October 1980, concerning fishery activities objected that those decisions dealt with less in waters under the sovereignty or juris- sensitive matters than the decision at issue in diction of Member States, Official Journal these proceedings, it is sufficient to cite 1980, L 298, p. 38) and four by the other measures with which the legislative Commission. The latter set up committees history of the Community is studded: on road transport (Decision of 18 measures which are also binding and are November 1985, Official Journal, L 317, p. also intended to deal with matters of 33), on railways (Decision of 19 December considerable importance or at least at the 1984, Official Journal 1985, L 8, p. 26), on extreme limit of Community powers; the control of pollution caused by the measures, moreover, which are based not on dumping of hydrocarbons discharged at sea a provision of the Treaty, but on the Treaty (25 June 1980, Official Journal, L 118, p. simpliciter or, worse, on Council resolutions 11) and on waste management (21 April and which, despite those characteristics, 1976, Official Journal, L 115, p. 73). were accepted in silence or with general satisfaction.

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Hence, their and, to start with, the issue which I have fear that in time this sector will come within mentioned in Section 1. the ambit of the Community is a genuine one. And it seems to me significant that they took the opportunity afforded by the Single European Act to bring things out into the Let us consider the time-scale involved. The open by securing themselves against contested decision was notified to all the incursions designed precisely to initiate a Permanent Representatives on 11 July 1985

days later. However, the Commission points out that, in the case of the Netherlands, the period of time allowed for commencing Lastly, the Commission's errors also had proceedings was two months — calculated some influence. I am not referring so much in accordance with Article 81 of the Rules to the hurry, which was certainly not very of Procedure as from the day following seemly, in which it issued the contested notification — plus six days in order to take measure. I consider, however, that the account of the distance between The Hague measure's excessive detail and, above all, the and Luxembourg pursuant to Annex II of stress which it puts on non-Community the Rules of Procedure. Accordingly, the workers and on agreements between time-limit expired on 18 September, that is Member States and non-member countries to say the day on which the Court Registry were not calculated to placate the irritations received the telex, but 48 hours before and fears which I have mentioned. Indeed it the original arrived.

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(paragraph 8). If we apply this rule in the and, in the alternative, breach of essential present case we find that the period of time procedural requirements. The first two prescribed in Article 173 of the Treaty for charges are based on the interpretation bringing proceedings for the annulment of given to Article 118 by France, Germany, the contested decision expired on 11 the United Kingdom and the Netherlands, September. If we add the six days for which and, for that very reason, lend themselves to applicants residing in the Netherlands joint consideration. However, it must be qualify we get the answer of midnight on 17 borne in mind that the four Member States

Since applied to the other applications it turns out these approaches involve very different that the Federal Republic of Germany and problems we shall have to consider them France lodged their applications in time separately. (Germany's application reached the Court on 17 September and the application of France, to which the correct text of the Let us commence then by considering the decision was notified a week later, on 24 first approach which, although it is to be September) but this is not true of the found in all the applications, is considered applications lodged by the United Kingdom in particular depth in the application of the

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In lation; but since the corresponding terms short, the Commission is not entitled to used in the German and English renderings carry out unilateral acts; and a fortiori it ('vorbereiten', that is to say prepare, and may not carry out unilateral acts involving 'arrange') have a meaning precluding any obligatory effects. such allusion, its semantic scope must be limited to the performance of purely practical preparation activities. As is obvious, the Federal Government continues, the Commission disagrees.

However, opening sentence of the first paragraph of the expression 'arranging consultations' ('die that article and in view of Article 155 — is Vorbereitung von Beratungen') is governed at the most capable of extending to recom- by the preposition 'by' ('durc¿'); mendations (see, in particular, the United accordingly the activity of arranging consul- Kingdom's observations). This is also tations is itself a means in the same way that suggested by the third paragraph of Article delivering opinions and making studies are 118, which stipulates that before delivering means. And that implies that the opinions the Commission is to consult the Commission is indeed free; but it is free to Economic and Social Committee.

Such There is more still. Crucial importance also consultations could also be effective even if attaches to the words which precede the carried out by way of forums (see the obser- aforementioned list in the second paragraph vations of the French Republic) in like

Still according to the Federal Government, the findings to which literal and teleologicai analysis of Article 118 leads are borne out The Commission's answer is that those by a consideration of its position within the observations lose relevance or are defeated system of the Treaty. There is no doubt, for altogether in view of the solely procedural instance, that its provisions are connected content of the contested decision. But the with the programme outlined in Article 117 objection is a weak one. Firstly, Article 189 (improved working conditions and standard makes no distinction between substantive of living for workers and harmonization and procedural instruments, and secondly, it thereof while the improvement is being is notorious that instruments are often maintained) and should therefore be read in procedural in form only. The Federal the light of the means by which, according Government argues that the requirement set to the second paragraph of Article 117, the out in Article 1 (1) (to notify measures in relevant aims are to be implemented. Those preparation) affects the substantive interests means consist of: (a) the automatic func- of the Member States by jeopardizing tioning of the common market; (b) the possible requirements of secrecy or, in the 'procedures provided for in this Treaty', case of agreements with non-member which presuppose provisions expressly countries, the confidentiality necessary to conferring a power to impose obligations; ensure the successful outcome of the nego- and (c) the approximation of national tiations. Indeed the French Government laws — that is to say a task which, as is maintains that the time-scale laid down for well known, devolves not on the consultation (two weeks plus six weeks) Commission but on the Council. may prevent urgent measures from being

taken in time. Lastly, the United Kingdom phenomenon of migration to and from argues that since it will be impossible to non-member countries; but the link is too issue proposed measures which are subject tenuous and indirect to bring persons to the procedure until the procedure has involved in those movements, with the been completed and the measures have been single exception of nationals of countries stated to be consistent with Community associated with the Community, within the policies, those measures are dependent, at scope of the rules set out in Chapter 1 of least defacto, on the Commission's approval. Title III of the EEC Treaty.

15 July 1974. However, it would be going remain silent (Article 223); even when it too far to give those measures the authority does not go so far it does involve a series of of precedents; they do not provide for a administrative activities (issue of visas, Member State's collaboration with the frontier checks) which fall wholly within the committees which they set up and the only jurisdiction of the Member States. The thing which they have in common with the Council itself recognized this eight days contested decision in this case is the after the issue of the contested decision: requirement of secrecy which is imposed on 'matters relating to the access, residence and participants in the relevant meetings. employment of migrant workers from third countries' — states the twelfth recital in the preamble to the resolution of 16 July 1985 — 'fall under the jurisdiction of

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As regard to numerous important details: for regards matters within the jurisdiction of the example, as to the nature of the measures to Community, a measure such as the be notified, the manner of notification and contested decision may well be based on the terms of the consultation. Those lacunae Article 121, which authorizes the Council to constitute failures to fulfil the duty to state assign to the Commission tasks in reasons. Indeed, the duty to state reasons is connection with the implementation of not designed only to inform the addressees common measures, particularly as regards of a binding measure of the reasons why a social security for migrant workers.

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In order to fulfil the first condition the substantive subject-matter affected by the 'common measures' would have to fall within the powers of the Community; 12. At this point I should commence my however, the entry, residence and examination of the applicants' main sub- employment of workers from non-member missions; but in view of the clear need for countries are plainly areas restricted to the an economical approach I should first Member States. establish whether the research carried out by France and the Federal Republic into an alternative 'basis' for the contested decision has come up with satisfactory results. If they Let us now turn to Article 213.

suppose — purely hypothetical^— that the Council should turn a deaf ear to the Commission's requests: must the However, that possibility can be ruled out Commission forgo fulfilling the tasks and so the Member States which argued in entrusted to it by the Treaty if those tasks its favour will at least be spared the more involve knowledge of information which serious of the risks which I have mentioned only the governments are capable of above. As far as Article 5, in particular, is providing? Obviously not.

In order to the contested decision. activate the machinery provided for in that

article it is necessary that the Treaty should speculative. The determining factor is that not have provided the 'powers of action' the measures to which it refers may be necessary to attain one of the objectives of adopted only in the form of directives or the Community. But — leaving aside the regulations pursuant to Article 100 or question whether the Commission has Article 235 — that is to say by the Council utilized the relevant powers properly — it is and by a unanimous vote. clear for everyone to see that the second paragraph of Article 118 provides the powers necessary to foster collaboration in the social sphere. I would therefore beg to Faced with these facts the arguments conclude that the suggestion in question has deployed by France and the United a 1960s 'feel', that is to say it is reminiscent Kingdom remain without effect.

Consequently, the match is to be played are extremely weak. Thus, to maintain that wholly on the ground chosen by the national measures could be subject to the Commission. Let us tackle it by starting procedure at issue only if their addressees with the matters which I have considered in were covered by the social provisions of the Section 10. Is it in fact true that the Treaty is tantamount to reversing the terms contested decision encroaches on a of the problem: if anything, it is the use of sector — the sector of migration policies — Article 118 which is justified on the grounds which is still restricted to the Member of the absence of Community rules on

However, I shall substantive content; in other words, none of return to this point in greater detail later. them governs — directly or by harmonizing national systems — the matters listed in the first indent of Article 1 (1). It will perhaps be objected that, pursuant to Article 3 (c), 'the objectives of the consultation 14. Consideration of the arguments by procedure . . . shall be inter alia: . . . (c) to which the four Member States have main- examine the possibility of measures, which tained that the Commission lacks might be taken by the Community.

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the European Community', in AA. W., A law. Thus when Mr Agnelli says that he Commentary of the EEC Treaty, New York, intends to promote the new Fiat Duna not Volume III, 1976, p. 748). As we have seen, even the most suspicious Maoist would Article 118: (a) takes as its starting point the attribute to him the desire to compel its principle of national jurisdiction but says purchase with the help of the judiciary and nothing about the role of the Council, even the police. But when President Roosevelt though its members consist of represen- pledged himself to promote organized tatives of the Member States; (b) confers a labour and, by that means, a better climate specific task on the Commission but is silent in American factories, listeners to his with regard to the sole power — that of 'fireside chats' understood very well that making rules — which would allow it fully what he was promising was the future to perform that task. National Labor Relations Act.

On the other hand, it is correct to say that 'promote' does not mean 'oblige', not even in French or Italian. But it is correct only in How, then, is consultation on migration terms of dictionary definitions, for history policies to be fitted into this framework, and experience show that promotion may which, I stress, is qualified by the presence take many forms, certainly including that of of two concurring obligations? After having

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This employment, remuneration and other was followed by Regulation No 38/64 of 25 conditions of work and employment'. March 1964 (Journal Officiel, L 62, p. 965). Here the invitation became a requirement but its scope was curtailed. The governments had to take account of That rule dominates the whole subject. It Community priority only when examining has, for example, been argued — and, it the Commission's annual report on the state seems to me, correctly — that the very 'right of employment. to accept offers of employment actually made', which is guaranteed to Community nationals by Article 48 (3), must be read in the light of that rule; that is to say it auth- orizes anyone who intends to emigrate to Community priority only became the subject another country to register on its of a genuine legal situation in Regulation employment registers in order to take No 1612/68. It is understood as being a advantage of the same job opportunities as right in the sixth recital, which links are afforded to its nationals (Gaja, 'I Community priority to the principle of lavoratori stranieri in Italia, Problemi non-discrimination, and it is defined as a giuridici dell'assunzione', in AA. W., right in Article 1 (2).

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nationals. The national employment services between consultations on migration policies may turn to their counterparts in and the free movement of labour. At this non-member countries 18 days after they point it is appropriate to ask ourselves have received applications from Community whether the Commission could have secured workers. compliance with (a) and fully asserted (b) without having recourse to a binding act. Moreover, this inquiry must be made, for the Federal Government accuses the Commission of not having first taken advantage of the numerous and less These provisions — let us be clear — must doubtful resources afforded by the Treaty not be overestimated: it is obvious, for and secondary legislation, especially in view instance, that they are far from having the of the fact that the Council had urged it to incisiveness of the provisions in force on the use those resources in its resolution of 16 common commercial policy (for instance July 1985. In fact, there is a declaration with regard to the management of quotas). annexed to that resolution in which it is said But that is of little consequence. What does that 'cooperation and consultation between matter, in my view, is that under those the Member States must include in the first provisions the principle of priority is given a place an improvement of the procedure on certain role to play in the defence of the existing institutions . . . with regard to the freedom laid down in Articles 48 to 51. And free movement of workers'. although that role does not call into question the Member States' jurisdiction as regards the access to employment of nationals of non-member countries, it is certainly opposed to the relevant powers being exercised in such a manner as The charge is unfounded. The bodies to adversely to affect Community workers' which the Council refers are primarily the right to move within the Community (see advisory and technical committees set up by also Gaja, op. cit., p. 135). It seems to me Articles 24 and 32 of Regulation No that in this context consultations on 1612/68. As we shall see shortly, the migration policies assume an importance of Commission has made very full use of the

OPINION OF MR MANCINI — JOINED CASES 281, 283 TO 285 AND 287/85

In other other, has criticized the decision for not words, they applied to those consultations having taken due account of the need for the criteria on the basis of which meetings confidentiality is the Government of the are held on similar subjects under the Federal Republic of Germany (supra, end of auspices of international organizations such Section 9). as the Council of Europe. The examples which the Commission's agent has given the Court could not be more eloquent. Then there are the mechanisms provided for in Articles 13, 14 and 19 of Regulation No

Since Article 118 governments, and Article 14 requires the provides for the possibility of consultations Member States to provide statistical infor- on problems 'of concern to international mation, which, at best, is suitable for iden- organizations', the subject-matter on the tifying foreseeable labour requirements. agenda — the exchange of ideas with a view Article 19 is more interesting; in 1979 the to coordinating the various positions — was Commission itself identified it as affording a certainly orthodox. However, the represen- possible procedural solution for its measure tative of the Federal Republic of Germany (supra, Section 5). It is more interesting and stated that it would be better to abstain yet it is not much more useful. It enables (a) from making any attempt to coordinate the information to be obtained but only on the approaches of the Member States and the results of Community arrangements for French representative even challenged vacancy clearance and on the number of whether it was within the terms of reference placings of nationals of non-member States; of the Technical Committee to tackle and (b) consultations to be held, but only problems of that kind (supra, Section 6). twice a year and on a limited range of topics, such as the report which the Commission draws up on the basis of infor- At the meetings on 21 October 1980, 6 mation supplied by the Member States. December 1983 and 22 January 1985 repre-

GERMANY, FRANCE, NETHERLANDS, DENMARK AND UNITED KINGDOM v COMMISSION

The French representative announced that thinking of the few judgments which used his government had adopted a measure the classic test of Chief Justice Marshall in designed to expel from the country all McCullocb v Maryland (17 US (4 Wheat. foreigners in an irregular situation and the 316, 421, 1819)), in order to provide the Belgian delegate asked him — quite Community with powers not expressly correctly in my view, since Belgium might conferred on it by the Treaties. Why this is have been involved — on what frontiers the so is obvious. In this case reliance on the operation would take place. But the poor principle of effectiveness does not signify man received a brusque reply: the expulsion invoking the theory of implied powers; it measures, stated the French official, would means merely — as the Court has done on be carried out under police escort. more than one occasion — giving a broad interpretation to an 'enumerated power'.

OPINION OF MR MANCINI — JOINED CASES 281, 283 TO 285 AND 287/85

17. Once this conclusion is reached the Commission is not entitled to perform remaining arguments put forward by the unilateral acts — is completely unfounded. applicants in support of the principal If anything, the origin of the provision submission lose most of their interest. proves the contrary. In point of fact, it Nevertheless, I consider that I must make a emerged from a compromise in which the few brief observations also in regard to following proposal of the heads of dele- them even though I shall deal with them gation was rejected: 'La Commission peut pell-mell. demander au Conseil de procéder à des échanges de vue des différents gouver- The Federal Republic of Germany and the nements au sujet des problèmes sociaux . . . ' United Kingdom, it will be recalled, argued [The Commission may ask the Council to that the list of means in Article 118 is arrange exchanges of view between the absolute and that to claim other means or various governments on the subject of social different ways of asserting them conflicts problems] (Neri and Speri, Traité instituant with Article 4.

urgency. In my opinion, confidentiality is appears to me that in the present context the already sufficiently protected by Article 214, reference to Article 4 is not relevant. That which requires the officials and other provision lists the Community institutions servants of the Community not to disclose and provides that each institution must act information of the kind covered by the obli- within the limits of the tasks conferred upon gation of professional secrecy; furthermore, it; but it provides no information capable of the provisions which the Federal Republic casting light — whereas this is precisely considers to be a threat to confidentiality what is needed — on the means or powers are contained without appreciable variations corresponding to those tasks. in all other rules introducing consultation procedures (see Article 4 (2) of Council The arguments based on the judgment in Decision 74/393/EEC of 22 July 1974, the third Defrenne case and on the opening Official Journal 1974, L 208, p. 23).

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Although I am sorry to see a provision which I consider to be indis- pensable and, in every other respect, correct 18. Let us turn to the alternative slip up on a classical banana skin, I consider submission. As I already mentioned, it is this charge to be founded. The Federal made up of two criticisms, the second of Republic of Germany is certainly right when which — insufficient statement of it states that the reasons for which consul- reasons — I have largely dealt with in tation was stipulated in the case of opinions Section 12. All that remains to consider in are even more compelling where the that connection then is the charge brought Commission has recourse to an instrument by the Netherlands with regard to the which is capable of having mandatory wording of the decision. The Netherlands effects. To stress the fact that Article 118 is Government alleges that the decision has silent in that regard is, in other words, an too many lacunae and is too imprecise and argument without any value. If I may put too contradictory to enable its addressees the matter in another way: to interpret the accurately to determine the extent of the first two paragraphs of Article 118 on the obligations to which they are subject. basis of a principle as bold as the principle of effectiveness and then to hide behind the stalest literal reading when interpreting the third paragraph is neither consistent nor That observation is without foundation.

But that does not with regard to the validity of a measure also make the lapse less unjustifiable. The contested on the grounds of an alleged formalities laid down in Article 118 and infringment of Article 190 that, 'even if it is other similar provisions of the Treaty are assumed that the passages. . . [of the anything but trivial. An Italian jurist has decision] were not drawn up with the observed that they were laid down 'in order accuracy to be desired, this fact has neither to guarantee respect for the balance of prevented the applicants nor the Court from powers struck in the Treaties, by enabling grasping . . . [its] extent' (judgment of 16 bodies expressing the various interests to December 1975 in Joined Cases 40 to 48, participate in the formulation of the

As regards the costs, I consider that it would be fair to order each of the parties, including the interveners, to bear their own costs, in view of the complexity and novelty of the issues involved.